By recognizing marriage equality nationwide, the Obergefell decision suggested in part the message that love makes a family resonated with both the public and the U.S. Supreme Court. Yet the decision itself did not fully address the many additional elements of family law beyond who one can marry. Even when same-sex couples get married and establish households that more closely mirror a so-called traditional family, they still encounter roadblocks to forming and legally protecting that family. One such roadblock is the unequal application of the “marital presumption of parentage.”
Traditionally applied to the husband of a wife who gives birth, the marital presumption of parentage—also called the marital presumption of legitimacy—assumes that children born to a married couple are products of that marriage and recognizes both members of the couple as parents. This presumption exists in some form in every state but historically could be rebutted by evidence proving that it was impossible for the person who did not give birth to be a biological parent of the child. Continue reading “Unequal Application of the Marital Presumption of Parentage for Same-Sex Parents”
